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Calif. Concealed Carry Case Gets Sua Sponte En Banc Call

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By William Peacock, Esq. on December 05, 2014 7:57 AM

The parties to the case didn't want en banc review. Other non-parties (California Attorney General Kamala Harris and the Brady Campaign) wanted en banc but were denied leave to intervene, because they were non-parties who waited years to jump on board to the case when they could've been part of the case all along.

But not to worry, firearm fearers: En banc is still a strong possibility. Despite nobody with a stake in the case calling for it, at least one of the circuit's many judges called for en banc review sua sponte (H/T to The Volokh Conspiracy.)

En Banc Treatment No Matter What?

As Eugene Volokh points out on his blog, this was one of three cases in the Ninth Circuit that could've led to an en banc reahearing. Shortly after a panel decided Peruta, two more cases -- one out of Yolo County, California, and one out of Hawaii -- came to the same conclusion based on the Peruta precedent. The parties in those cases pressed for en banc review, so the opportunity to address the Second Amendment issue was on the table no matter what.

And while Harris and the Brady Center have not given up their own fights to join the party (they're asking for en banc reconsideration of the denied motion to intervene), all of that might be for nothing -- they want Peruta reviewed en banc on the Second Amendment merits, and it may happen anyway thanks to the sua sponte call.

Any Chance Calif. Gets Concealed Carry?

The sua sponte call doesn't guarantee en banc review; rather, it instructs the parties to express their views on the request within 21 days. Amici curiae are also called for explicitly, so attorneys general, the Brady Center, and the numerous organizations on the other side (the National Rifle Association, et al.) can still chime in.

If the court does grant en banc review, will the concealed carry holding stand? I was extremely shocked by the original panel's ruling -- what, after all, are the odds of the most liberal circuit wiping out the most liberal state's concealed carry rules? One wouldn't imagine a full Ninth Circuit sitting en banc would be likely to rule against the state.

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